THE COURT OF APPEALS
of theSTATE OF WASHINGTON
FRED STEPHENS,
APPELLANT
v.
DEPARTMENT OF CORRECTIONS,
RESPONDENT,
OPENING BRIEF OF APPELLANT
APPEAL FROM THE SUPERIOR COURT OFSNOHOMISH COUNTY
No. 72950-1-1
Fred Stephens, pro seMonroe Correction ComplexPO Box 888, TRUMonroe, WA 98272
COUF:l of ,v-->EALSDIVISION ONE
JUL 8-am
TABLE OF CONTENTS
I. NATURE OF THE CASE 1
II. ERRORS ON APPEAL 2
III. STATEMENT OF THE CASE 3
A. Proceedings 3
B. Relevant Facts 3
IV. ARGUMENTS ON APPEAL
A. STANDARD OF SUMMARY JUDGMENT 4
B. Ground One--Article 1, sec. 5.
1. Ignored Briefing 51. Court's Duty 63. Gunwall Analysis 74. Section 5's Enhanced Protection 8
C. GROUND TWO—PRIOR RESTRAINT
1. Issued Raised 11
2. Legal History 123. Policy Examined 13
C. GROUND TBREE--OVERBROAD ANALYSIS
1. Agency Authority 152. Legal Standard 153. Prison Context 16
E. GROUND F0UR--42 U.S.C. § 1983
1. Turner's Four Part Test 172. Turner Applied 183. Party Identification 20
F. ERROR GRANTING SUMMARY JUDGMENT
1. Credibility Issue 212. Key Issue 213. Rebuttal Evidence 22
G. GROUND SIX --COMMUNICATION DECENCY ACT
1. Federal Law
2. Supremacy Clause
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H. GROUND SPv'55 25
V. COST MIL 25
VI. CONCLUSION 55
TAI^Li; OF AUli-iOiaTiJiS
A. STATE CASES
Ada;ns v. Hinkle, 51 Wn.2d 753, 3/2 P.2d 54^ 5, 12
American Exp. Centurion Bank v. Stratraan,172 On.Aop 657, 292 P.3d YU (2012) 5
American Leeion Post #149 v Wasn. Deot. of HealIn,164 Wn.2d 570, 192 P.3d 306 (1998)
Pradourn v. N. Central Lib.,16o V;n.2d 739, 231 P. 3d 166 (2010) 1
Eruomett v. wash. Lcrterv,171 On.Apop. 654, . ,• P.3d 42 (2012) 3
City of Seattle v. Hurt, 111 On. 2d 923, 7M P.2d 572 (20oC) 4, j.5
Coiiier v. City, 121 wn.2d 737, S54 P.2d 1046 (1993) 7
Delo.tc v. Panneloe, 157 On.Apo. 119, 235 P.2d 935 (2010) 9
FD1C v. Urine, 171 On.Ado 553,25/ P.5d 694 (2012) ' >1
Fine Arts Guild v. City of Seattle,74 wn.25 503, 445 P.2c 302 (1958) 12
Gunwall v. State, 106 On. 2d 54,720 P. 2c 808 (1986) ' oa.-:ii/i
Ino Ino v. City of Sellevue,152 wn.2d 103, 537 P.2d 154 (1997) 5, 10, 11
JJR Inc. v. Citv of Seattle, 126 Wn.2c 1,891 P.2d 720 (1995) 12
•\eck v. Collins, 151 wn.Ap:;. 57, 525 P.3d 505 (2014).. 4
McCleary v. State of Wasn., 173 On.2d 477, 265 P.3d 227 (2012) 5,7
Montanerv v. J-M V\£z. Co.. 130 On.Add. 555.124 P.3d 1114 (2015) ' 5
O'Day v. idn? Coi-nty, 109 On.2d 79o, 749 P.2c; 145 (1985) 7
0P;55i55 MI.M OF
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Robinson v. Peterson, 87 Wn.2d 665,555 P.2d 1340 (1976) 1
Space Needle v. Karala,105 Wn.App. 123, 19 P.3d 461 (2001) 5
State v. Coe, 101 Wn.2d 364, 679 P.2d 353 (1984) 12
State v. Earls, 116 Wn.2d 364, 805 P.2d 211 (1991) 8
State v. H.O. Sports, 183 Wn.App. 145, 333 P.3d 455 (2014) 4
State v. Imelt, 173 Wn.2d 1, 267 P.3d 305 (2009) 15
State v. Peppin, WL 1592442 20
State v. J-R Dist. Inc., Ill Wn.2d 764,765 P.2 28 (1938) 12, 14
State v. Reece, 110 Hn.2d 755, 757 P.3d 947 (1988) 6
State v. Rinaldo, 36 Wn.App. 86, 673 P.2d 614 (1984) 7, 8, 11
State v. Tnorne, 129 Wn.2d 736, 921 P.2d 514 (1988) 7
Voters Educ. Committee v. Wash. State Public DisclosureComiw, 161 Wh.2d 470, 166 P.3d 1174 (2997) 8,12
Westennan v. Cary, 125 Wn.2d 277, 392 P.2d 1067 (1994) 9
Woods v. H.O. Sports, Co., 183 Wn.App. 145,333 P.3d 455'(2014) 4
IvorId Wide Video Inc. v. City of Spokane,125 Wn.App 239, 103 P.3d 1265 (2009) 8
B. STATE LAWS & STATUTES
Washington Constitution,
Article 1, Section 5 passimArticle I, Section 29 8, 9
Revised Code cf Washington
RCW 2.28.020 14RCW 26.50.030 14
RCW 72.09.530 14, 24
UAC 127-48-010 14
Department of Corrections Policy 450.100 1, 13, 24, 25
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C. FEDERAL CASES
Ashker v. California DOC, 350 F.3d 917 (CA 9 2003) 18
Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389,535 U.S. 234, 152 L.Ed.2d 403 (2002) 15
Backpage.com v. McKenna,881 F.Supp.2d 1262 (W.D. Wash 1996) 23
Hines v. Gomez, 108 F.3d 265 (CA 9 1997) 25
Jackson v. Pollard, 208 Fed 457 (2006) 19
Jordan v. Pugh, 504 F.Supp.2d 1109 (2007) 18
Patterson v. State of Colorado, 27 S.Ct. 556 (1907) 8
Prison Legal News v. Lehman, 397 F.3d 692 (CA 9 2005)
Stephens v. Gonzalez, No. 13-2-05086-1(U.S. Dist. Crt., W.D.Wash.2014) 25
Turner v. Safley, 482 U.S. 78,482 U.S. 75, 96 L.Ed.2d 64 (1987) 2, 17, 18, 20, 22
D. FEDERAL CONSTITUTION, STATUTES
U.S. Constitution
First Amendment 16Fourteenth Amendment
Statutes
IS U.S.C. § 2703
42 U.S.C. Section 1983 25
47 U.S.C. Section 230 23, 24
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I. NATURE OF THE CASE
This appeal is brougnt by Fred Stephens an inmate at the
Twin Rivers Unit. He appeals the decision of Judge
George Bowden granting Summary Judgment to the Depart
ment of Corrections (herein DOC).— The underpinnings
for Summary Judgment, among other points, raises three
issues of first impression: First, Stephens challenges
DOC's censorship of his incoming mail from the interent
(i.e. websites). Second, in the context of prisons, this
is the first case to argue that Article 1, sec. 5 is
more protective than tne First Amendment. And third,
this is the first case to claim a State agency violates
federal law governing tne internet. CP-08. £47 U.S.C. §
230 & 18 U.S.C. §2703 (b)(2)J. The case is only tne
second one before tne courts concerning censorsnip of
tne internet.— As argued herein, tne principle target
on appeal is Policy 450.100 and DOC's decision to apply
the THIRD PARTY mail prohibition to internet providers
and users.
In addition, the apoeal will argue that the trial
c;urt incorrectly a^-iico trie laws and decisions of mis
court in granting Suimary Judgment.
1. Snonomish County Superior Court, No. 14-2-03048-2
2. In Bradburn v. N. Central Regional Library, 168 Wn.2d 789, "231P.3d 166, 173 (2010), tne court noted that "there are ... no cases[involving tne interent] decided under article 1, sec. 5."
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II. ERRORS ON APPEAL
This appeal claims the trial judge erroneously granted
Summary Judgment as follows:
1. The trial court erred when it failed to consider the
state constitution and Stephens' JSunwall analyis before
turning to federal law. Q. Whether Art. 1, sec. 5, grants
enhanced or broader protection than the First Amendment?
2. The trial court erred in concluding that DOC's THIRD
PARTY MAIL policy does not constitute a prior restraint?
Q. Whether DOC's THIRD PARTY mail policy, as applied to the
internet, is a prior restraint when it censors internet
speech before Stephens receives it?
3. The trial court failed to consider Stephens' complaint
that DOC's "Third Party Mail Policy", as applied, is
overbroad and unconsitutional?
4. The trial court erred, contrary to Turner v. Saflev.
granting Summary Judgment based on DOC's "Bald Assertions".
Q. Whether the trial court improperly applied .Turner
granting Summary Judgment on "BALD ASSERTIONS"?
5. The trial court incorrectly applied the law of Summary
Judgment where the Plaintiff provided evidence that
impeached the single Declaration of Roy Gonzalez?
6. The trial court erred in not finding federal law barred
DOC from imposing its policy to restrict information from
internet providers and users. Q. Whether Stephens was a
user of the internet?
7. The trial court erred granting Summary Judgment on the
issue of retaliation? Q. Was the evidence sufficient to
support a claim of retaliation?
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III. STATEMENT OF THE CASE
A. PROCEEDING
1. On 7/23/2014, Stephens Petition for a Temporary
Restraining Order (TRO). At the hearing, Judge Millie D.
Judge denied the TRO and opined Stephens must provide a
Gunwall Analysis. (Sub #20, CP-174). The order was un
accompanied with Findings of Fact & Conclusions of Law.
2. On 10/8/2014, Stephens filed an Amendment Complaint.
CP-157—173.
3. On 12/9/2014, the court held a hearing on Defendant's
"2nd Motion for Summary Judgment". Following the
hearing, Judge Bowden granted DOC's motion for Summary
Judgment. (Sub #65, attached to Notice of Appeal).
B. RELEVANT FACTS. It is undisputed that DOC rejected
Stephens mail printed and sent by internet website pro
viders and users. DOC officials have not claimed the
"CONTENT" of any mail sent threatens the "security and
safety" of the institution; rather, officials reject
mail premised on its source, i.e. being THIRD PARTY.
1. Rejection IN-MCC-10/10/13-751. DOC claims the mail
was rejected "because it contained two persons'addresses on them which were obtained through an
internet company." CP-60. Stephens debunked this claim
providing a true copy of the mail that was rejected. See
Stephens' Declaration, Appendix A, Ex 15; attached
herein Ex 15.
2. Rejection 1-12/6/13-751, mail from Help From Out
Side; held a short "email from...Norma Didomo". CP-61.The email identified all parties to include email
addresses. The content of the email concern the welfare
of Ms. Didomo after the Typhoon in the Philippines.
Attached herein Ex 8.
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3. Rejection IN-MCC-3/5/14, mail from Inmate Scribes and
"contained ... six profiles and messages from potential
pen-pals." CP-61. The messages were simple requests to
make contact. CP 125 thru 130.
4. Rejection IN-MCC-3/31/14-751, mall send from Inmate
Scribes. This mail contained "two more profiles of pro
spective female pen-pals." CP-62.
5. Rejection IN-MCC-4/17/14-751. The mail held "two
profiles and messages from potential pen-pals." CP-62.
Each message was merely an invitation to make contact:
Hello, here I am, call me.
6. In Stephens' Amended Complaint, he raised a claim for
rejection #IN-MCC-7/l/14, but this rejection went un
answered by DOC. See CP-160, @ 117.
7. Stephens' Amended Complaint also raised a claim of
mail rejection IN~MCC-S/19/2k014-751, but this rejection
went unanswered by Respondent DOC. CP-160, (3 fl8.
IV. ARGUMENT
A. STANDARD OF 3EVTEW
Oxi appeal from Summary Judgment, this court reviews
the trial court's decision de novo. Keck v. Collins.
325 P.3d 306, 312 (2014). De novo review includes the
court's independent examination of the evidence. Id.
When reviewing the evidence, the court "construes all
facts and reasonable inferences from those facts in the
light most favorable to the non-moving party." Woods v.
H.O. Sports Co.. Inc.. 333 P.3d 455, 456 (2015).
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Summary Judgment is appropriate when there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c). The
moving party bears the initial burden of showing no
genuine issue of material fact, and meets its burden by
showing an absence of evidence to support the non-mov
ing party's case." Brummett v. Wash. Lottery* 288 P.3d
48, 53 (2012), see CP-63. On motion for Summary Judg
ment, the court does not weigh the evidence; rather, it
decides whether the evidence gives rise to any issue of
material fact. American Exd. Centurion Bank v. Stratman. 292 P3d 125
(2043). If the non-moving party presents contradictory
evidence and the evidence is not too incredible to be
believed by reasonable minds or the movant's evidence is
impeached, an issue of credibility is present and the
court should deny the motion. Space Needle v. Kamla. 105
Wn. App. 123, 19 P.3d 461, 465 (2001); Montanev v. J-M
Mfg Co.. 314 P.3d 1114, 1147 (Div 1, 2013).
B. GROUNDS FOR APPEAL
IT WAS PLAIN ERROR FOR THE SUPERIOR COURT NOT TOCONSIDER CENSORSHIP OF STEPHENS'S MAIL AND FREESPEECH UNDER THE STATE C0NSTITUTRI0N, Art. 1 sec. 5.
1. IGNORED BRIEFING. Stephens raised the issue that the
State Constitution is "different" and requires an inde
pendent interpretation than the First Amendment. CP-17.
In opposite, Respondents argued that a Gunwall analysis
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is necessary. CP-66. In Respondents' "Reply to Defen
dants* Second Summary Judgment", they claim: "Stephens
provides no evidence or analysis that the state consti
tution contemplates greater protections for prisoners
than the First Amendment." CP 2. Said claim is wrong for
three reasons: First, the state has the burden to
justify abrigement of its citizens rights. Ino. Ino Inc.
v. Citv of Bellevue. 937 P.2d 154, 162 (1997). Second,
Art. 1, § 5 has already been held to grant greater
protection. State v. Reece, 757 P2d 847, 952 (1988)
("The language of article 1 section 5 is significantly
different from the First Amendment and often will
support a broader protection for free speech in
Washington); And third, Respondents ignore the fact that
Stephens did submit a Gunwall Analysis. CP 17-22.
As discussed below, the case is one of first impres
sion, in the context of prisons no case has considered
whether Art. 1, § 5 is more protective. Yet, because Art
1, sec. 5 grants free speech to "every person" (inmates
not excluded) the question needs to be argued.
2. COURT'S DUTY. In this case, the trial Court ignored
its duty to first consider the state constitution: "The
judiciary has the primary responsibility for interpret
ing [Art. 1, § 5] to give it meaning and legal effect."
McClearv v. State of Wash.. 269 P.3d 227, 246, (2012).
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This court repeated the premise in Collier v. City of
Tacoma. holding: "This court has a duty, where fea
sible, to resolve constitutional questions first under
the provisions of our own constitution before turning to
federal law". 854 P.2d 1046, 1050 (1993). Given the
clarity of law, it was plain error for the trial court
not to consider Stephens' claim of Free Speech under
Art. 1, § 5. (Here after Section 5).
3. GUNWALL ANALYSIS? Tne legal landscape concerning Art
1, § 5, supports Stephens' position that an independent
analysis under the State Constitution is warranted with
out Gunwall analysis. Starting with State v. Rinaldo, 56
Wn. App. 86, 95 (1984), the court recognized two things:
"First, the delegates [to the state constitution] wereat least as familiar with the First Amendment ... aswe are today. Second, the difference between the FirstAmendment and article 1, section 5,... which thesedelegates drafted and adopted, was earnestly intended.... It follows that the courts of this state havethe power to interpret our state constitution as beingmore protective of press freedoms than the parallelprovision of the [U.S. Constitution]."
The Rinaldo opinion creates a presumption that Art 1,
§ 5 is more protective. Continuing with the same logic,
in 1988 the court in Q'Dav v. Kine. held: "[Art. 1, § 5]
differs significantly from the First Amendment, and it
is well settled its protections afforded constitute a
"preferred right.' " 749 P.2d 142, 146 (1988). Again, in
State v. Thome, 921 P.2d 514, 537 (1996), the court
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(Macisen dissent) wrote: "This court has stated that 'resort to the
Gunwall analysis is unnecessary' where the court has already aecided
that the scope of protection under both the federal and state consti-
3/tution is co-extensive." Citing State v. Earls, 116 Wn.2d 364, 374.—
Because the subject is "stare decisis", Stephens was not required to
offer a Gunwall analysis. Thus, the trial court erred in not
considering Stephens complaint under Section 5. CP 17.
4. WHY ARTICLE 1, SECTION 5 GRANTS ENHANCED PROTECTION
a) Prior History. In 1889, when the State Constitution was adopted,
the First Amendment was not obligatory uoon the States. Patterson v.
St. of Colorado ex rel Attv Gen.. 27 S.Ct. 556, 559 (1907). Yet, the
founding fathers knew of tne First Amendment and intended enhanced
protection. Rinaloo, id at 95. Indeed, the conventioneers of 1889
considered three proposals, each became progessively more liberal.
"The third version...went all the way and was an affirmative grant of
guaranteed right to every person." Id. at 93-94. CP 19. It reads:
"FREEDOM OF SPEECH: Every person may freely speak, write andpublish on all subjects, being responsible for the abuse of thatright."
b) Mandatory Right, when Section 5 is read "in pari materia" with
Art. I, sec. 29, there can be no doubt that Section 5 grants absolute
free speech to "every person", .Art. I, sec. 29 reads:
"The provision of this constitution are mandatory, unless byexpress words they are declared to be otherwise."
3. In accord, World Wide Video. Inc. v. City of Tukwila, 816 P.2d 15,20 (1991); yoters Educ. Committee v. WA. St. Pub. Disclosure Comm'n,151 Wn.2d 470, 493 (2007): Am. Legion Post #149 v. Wash. StateDepart, of Health, 164 Wn.2d 570, 192 P.3d 506, 320 (2008).
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The expressed words "every person" in Art 1, § 5 cannot
be re-interpreted to mean "every person" except prisoners.
Westerman v. Carv, 125 Wn.2d 277, 288 (1994) (cannon for
constitutional construction requires words to be given
their ordinary meaning); Delong v. Parmelee. 336 P.2d 936,
950 (2010) (holding that the phrase "any person" guaranteed
prisoners equal rights under the PRA).
c) Prisoners NOT Excluded. The founding fathers knew how
to exclude prisoners. In other sections of the Constitu
tion the founders expressly excluded prisoners from
exercising certain rights. Const. Art VI, sec 3 "no right
to vote"; Const. Art V. sec 2, "cannot hold public office";
and Art II, sec 29, prohib«WK against slavery. It is
crystal clear that Art 1, sec 5 must include prisoners.
d) Individual right. Unlike the First Amendment (directed
at the U.S. Congress) Free Speech under Art 1, sec 5, is
not a mere guide to the formation of state policy, but a
command, the breach of which cannot be tolerated. As held
in Rinaldo. at 93-94:
"Those hardy frontier lawyers, newspaper people and theircollagues at the 1889 constitutional convention said itas clearly as they possibly could, ... the right to freespeech and press in the State of Washington is aprivilege guaranteed to all."
Therefore, under Art 1, § 5, Stephens has the same right to
receive internet speech as other citizens. To abridge his
internet speech, unlike the four part test of Turner v.
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Saflevt "officials must show that a regulation authorizing
mail censorship furthers one or more...substantial govern
mental interests"; e.g. "preservation of internal order,
discipline, security ..., or unauthorized entry." Robinson
v. Peterson. 87 Wn.2d 665 (1976).
e) Enhanced Protections of Article I, section 5
First enhanced protection of Art 1, § 5 is the Standard
of Review. Because section 5 is an individualized privilege
of free speech, DOC must put forth evidence its Third Party
mail policy is necessary to achieve a substantial interest
of safety & security of the prison. On this point, the DOC
offers no evidence that internet website providers, as a
party, threaten the security & safety of the prison; nor
has DOC advanced any complaint that the content of e-mails
sent to Stephens pose a threat to the prison. Rather, DOC
supports its argument with Roy Gonzales' declaration who
claims DOC needs to identify the parties to prevent
violation of no contact orders? CP 78-79. Yet, Gonzales'
supposition, standing alone, does not create a substantial
interest of security & safety to the prison. Ibid
Second enhanced protection of Section 5 are the words
"being responsible for that right"; these final words place
the burden on DOC to show the content of internet speech
and printed information is an abuse of the free speech. In
other words, unlike the First Amendment, Stephens' right of
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free speech cannot be abridged unless the DOC can show that
messages mailed to him constitute an abuse of free speech;
e.g. abusive speech include: calls to riot, hate speech,
obscene utterances, plans to escape, criminal activity, and
threats to assault staff or inmates. Of course, to justify
censorship of speech, DOC's mail examination must find
contraband. In the instant case, the DOC does not claim
Stephens abused his right of free speech.
In summary, Respondents have not carried their burden of
showing a substantial government interest to merit censor
ship of Stephens' incoming internet mail. Ino Ino. Inc. v.
Citv of Bellevue. 132 Wn.2d 103, 114 (1997) (The state
bears tne burden of justifying restrictions on speech). In
addition, where abuse of speech is not alleged, no censor
ship can occur. Rinaldo, at 95-95 ("The record ... being
devoid of any showing of abuse").
C. GROUND TV/0 05 APPEAL
THE STATE CONSTITUTION, ARTICLE I, SECTION 5 PROVIDESGREATER PROTECTION AGAINST PRIOR RESTRAINTS OF SPEECH
THAN THE FIRST AMENDMENT.
1. ISSUE RAISED. Stephens raised the issue that DOC's THIRD
PARTY mail policy, as applied to website providers, consti
tutes an unconstitutional prior restraint of speech. CP 1,
&. 164. However, the Respondents did not address the issued
in their Motion for Summary Judgment. CP 63-70.
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2. LEGAL HISTORY. While the application of Section 5 in tne
prison context is an issue of first impression, state
court's nave a long history of invalidating the form of
censorship at issue. A "prior restraint" means:
"[A]ny form of govenment action which tends to suppressor interfere with speech activity before it is ultimatelypunished through civil or criminal sanctions in a courtof law. State v. J-K Dist. Inc.. Ill Wn.2o 754, 775(1988).
a) Prior restraints are NOT unconstitutional oer se under
the First Amendment, but they are under Section 5; JJR Inc..
v. Seattle. 126 Wn.2d 1, 5 (1995). Section 5, "cate
gorically rules out prior restraints of constitutionally
protected speech under any circumstances'', Voters Educ.
Committee, supra at 470, "where the information sought, to
be restrained was lawfully obtained, true, and s matter of
public record." State v. Coe, 101 Wn.2d 364, 374-75 (1984).
This strict standard for evaluating prior restraints lies
in the plain language of Section 5. Ibid.
Our Supreme court has struck down prior restraints in
most contexts. Adams v. Hinkle, supra (enjoining "Comic
Book Act" because it vested power to enter final censor
ship determinations to a state administrative agency); Fine
Arts Guild v. City of Seattle, 74 Wn.2d 503 (1968) (enjoin
ing administrative aaency to censor sexually explicit films
for the same reason): JJR, id at 1 (holding tnat licensing
scheme was unconstitutional prior restraint): Coe, at 375
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(court order invalidated because it was a pror restrain of
lawfully obtained information).
Despite the precedent of our Supreme Court prohibiting
agencies from imposing prior restraint censorship, the DOC
is operating such a system under the facts of this case.
See CP 58 & 75.
3. POLICY EXAMINED. First, the words "THIRD PARTY" appear
twice: "DOC 450.100 IV A.3." CP 85; and again under 'B.
Outgoing Offender Mail". CP 86. Yet, none of the mail re
jections violate the policy. The incoming mail is only for
Stephens and not "FOR" a third party (anotner inmate); none
of the mail rejections concern outgoing mail. [See dis
putes at CP 10]. Stephens reiterates: A plain reading of
the mail policy show3 his incoming mail was not in viola
tion* lpld« Ihe policy at issue here is the verbal or
internal memos from Gonzales and stated in his declara
tion. CP 74. Second, the term "Third Party Mail" is not
defined. CP 98-101. Last, the "Third Party" mail policy
does not appear in the list of "UNAUTHORIZED MAIL". CP 97-
101. Thus, this court is addressing an unwritten mail
policy that is arbitrarily & capriciously applied.
A studied read of Gonzales' declaration certainly speaks
of a prior restraint, he states: "Under DOC policy 450.100,
offenders are prohibited from engaging in any
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kind of third party communications in a number of ways".
(CP 75, oara. 4). Though not specifically written in
policy, Roy Gonzales gives an official command tnat
constitutes a prior restraint of speech, to wit:
a) The policy is imposed by "government action", DOCseizes and rejects mail, J-i) Dist. Inc. T supra.;
d) Tne policy as applied "suppresses or interfers" with
protected free speech and associations. (Websites are
the modern clay newspaper, the information highway).
c) The speech DOC seeks to abridge is '"punishable" byprison infraction, WAC 137-48-010 (Unauthorized Commu
nication with another Inmate), or RCW 26.50.110
(Violation of an Order), or RCW 2.28.020 (Contempt);
d) The policy blocks all protected speech as well as the
speech the DOC seeks to prohibit, and;
e) The policy is administered at the discretion of prisonmailroom staff. (See CP 15 discussion of internet mail
that was not censored).
The DOC's Third Party Mail policy, as applied to the
internet, is a prior retraint and invalid under Section 5.
Therefore, Stephens seeks this court's decision holding
DOC's mail policy invalid as a prior restraint of speech.
Importantly, holding the Third Party mail policy invalid
does not impede DOC's ability to examine the mail for
contraband or speech, content that threatens the safety &
security of the prison.
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D. GROUND THREE ON APPEAL
DOC'S THIRD PARTY MAIL POLICY, AS APPLIED, IS OVERBOARDAND THEREFORE UNCONSTITUTIONAL
1. AGENCY AUTHORITY. The statute DOC claims vests it with
authority to censor internet speech witn the label of
"Third Party" is RCW 72.09.530. However, to the extent that
DOC interprets RCW 72.09.530 to censor interent speech, the
statute is overbroad. Stephens also claims the statute is
void for vagueness where it labels speech printed from the
internet contraband. (Argued at CP 70).
2. LEGAL STANDARD. Several principles guide Stephens' over
breadth argument of RCW 72.09.530. "A law is overbroad if
it sweeps witin its prohibitions constitutionally protect
ed free speech activities." City of Seattle v. Huff, 111
Wn.2d 923, 925 (2000): .Ashcroft. 122 S.Ct. at 1403 ("The
government may not suppress lawful speech as a means to
suppress unlawful speech). In determining overbreadth, "a
court's first task is to determine whether the enactment
reaches a substantial amount of constitutionally protected
conduct". Huff, id. A statute or ordinance will be over
turned only if the court is unable to place a sufficiently
limiting construction on a standardless sweep of legisla
tion." State v. Immelt. 173 Wn.2d 1, 11 (2009). The concept
of "substantial overbreath" is not readily reduceo to an
exact definH'iaw. However there must be a realistic
OPENING BRIEF OF
APPELLANT - 15 - 06/02/2015
danger that the statute itself will significantly compro
mise recognized First Amendment protections of parties not
before court." Imnielt. at 11. A statute is constitutionally
vague if it is framed in terms so vague that persons of
common intelligence must necessarily ?uess at its meaning
and differ as to its application. O'Day. 109 Wn. at 810.
As the record of tnis case shows, there is no limiting
construction on tne standardless sweep of the term "contra
band" and "Third Party Mail". Ibid.
3. PRISON CONTEXT. RCW 72.03.530 was intended to prohibit
the introduction of real contraband to include: explosives,
chemicals, deadly weapons, tools, alcoholic oeverages,
drugs, tobacco and obscene materials. WAC 137-48-020.
Prohibiting physical contraband from entering the prison is
a legitimate agency interest. However, DOC is sweeping
within the statute's ambit one of the most comprehensive
and advanced platforms for free speech ever conceived--the
World Wide Web, the internet. The DOC accomplishes this
prohibition by labeling internet providers and users as a
"Party" to the speech being delivered.
Because DOC's mail policy restricts a voluminous amount
of protected speech, in its attempt to restrict a tiny
amount of unprotected speech, its Third Party Hail policy
is overbroad and invalid under Article I, sec. 5 and the
First .Amendment of the U.S. Constitution.
OPENING BRIEF OF
APPELLANT - 16 - 06/02/2015
E. GROUND FOUR--TURNER V. SAFLEY
THE TRIAL COURT IMPROPERLY APPLIED THE FOUR PART TESTOF TURNER V. SAFI.EV ACCEPTING DOC'S ASSERTIONS WITHOUTANY SUPPORTING EVIDENCE. First & Fourteenth Amendment.
1. Turner Test. The Supreme Court (herein SCOTUS) nas
repeatedly recognized that restrictions on the delivery of
mail burdens an inmate's ability to exercise his ... First
Amendment rights. Clements v. Calif. Deot. of Corr.. 364
F.3d 1148, 1151 (2004), [CP 14]. When a prisoner files a
complaint under 42 U.S.C. § 1983, the courts apply the
familiar four part test of Turner v. Saflev. 482 US 78, 89
(1987): (1) there must be a "valid, rational connection"
between the regulation and the governmental interest to
justify a restriction. (2) whether there are alternative
avenues that remain ooen to the inmate to exercise the
right. (3) the impact that accommodating the asserted
right will have on otner guards and prisoners, and on the
allocation of resources; (4) whether the existence of easy
and obvious alternatives indicates that the regulation is
an exaggerated response by prison officials. Clements, at
1152. The first factor constitutes "sine oua nan". If a
regulation is not rationally related to a legitimate and
neutral agency objective, a court need not reach the re
maining three factors. Prison Legal News v. Lehman, 397
F.3d 692, 699 (CA 9 2005); Turner. 482 US at 89-90.
OPENING BRIEF OF
APPELLANT - 17 - 06/02/2015
Though the Turner decision grants prison officials deference
toward their polices; said deference does not mean abdication of
judicial oversight. Officials must still put fourth evidence to
justify restrictions on First Amendment rights. Turner, id at 89-90.
2. TURNER APPLIED. Factor One. Stephens asserts there is no legiti
mate or logical connection for DOC's stated goal and its Third Party
Mail policy applied to the internet. "A regulation cannot be sus
tained where the logical connection between the regulation and the
asserted goal is to remote as to render the policy arbitrary or
irrational." Ashker v. Calif. DOC. 350 F.3d 917, 922 (CA 9 2003).
Here, Stephens cited Clements, supra at 1152, as dispositive; where
the District Court granted an injunction against the prison for bann
ing pen-pal and website mail. In Clements, prison officials advanced
two reasons to ban internet mail: First, they contended the volune of
mail was a burden on prison resources; second, they asserted that
internet-generated mail creates security concerns because it is
easier to insert coded messages into internet material. The Court
dismissed CDOC's claims because they did not "articulate a rational
or logical connection between its policy and these interests.
Clements, id. [The Calif. DOC did not deem a ban on "Third Party
Mail" necessary to enforce prohibited contacts; nor did they consider
internet mail Third Party?]. Other courts have held the absence of
evidence fatal to policy:_AsbJ£gr, supra, (Overturning policy that
approved vendor labels must be affixed to books and magazines);
Jordan v. Pueh. 504 F. Supp.2d 1109, 119 (2007) (Overturning BOP
OPENING BRIEF OFAPPELLANT - 18 - 6/02/2015
policy preventing prison from writing a "byline" where no "proof of a
past problem"); Jackson v. Pollard. 208 Fed 457, 461 (2006) (Jackson
has raised a genuine issue of material fact as to whether the regula
tion prohibiting delivery of printed e-mail responses to personal web
pages rationally advances the goal of protecting the public).
In summary, DOC fails Factor One, Gonzales' declaration provides
no evidence that the Third Party Mail policy is legitimately or logi
cally related to accomplish its goal to ban prohibited contacts. CP
126. Inmates still violate prohibited contacts using U.S. Mail.
Factor Two. Inmates do not have direct access to the Internet, and
there is no speech medium that matches the specificity, speed, deepth
and low costs of internet searches. Clements, at 1151. The internet
allows family & friends to use their time and money efficiently. As
tiie court knows, newspapers and yellow pages are now very limited.
Certain information can only be obtained from the internet. There is
simply no alternative to the internet. 47 U.S.C. §230 (a) Findings.
Factor Three. DOC mail policy has no limit on the amount of mail an
inmate may received. CP 82. Respondents raises no issue that inter
net mail will burden prison resources. Thus, this is a non-issue.
Factor Four. The DOC's Third Party mail policy as applied to the
internet is an exaggerated response for three reasons: First, Mr.
Gonzales' declaration presents no evidence that Internet Providers
have facilitated prohibited contacts. Second, Stephens provided
OPENING BRIEF" OF
APPELLANT - 19 - 06/02/2015
evidence that many prisons across American allow pen-pals and
internet materials. CP 40 "WriteAPrisoner.com", (Attached £x 13,
"PenACon.cora"). Third, Internet materials are printed, not hand
written, therefore, they require less scrutiny than regular mail.
3. PARTY ID. Roy Gonzales" declaration advances a false narrative
that e-messages printed and mailed from a website do not provide DCC
with party identification. CP 78. This assertions is not true. Unlike
U.S. Mail, where citizens can write a false, non-traceable return
address (see fictitious addresses: CP 33 &34), e-mails and websites
are fully traceable. Based on expert opinion, the Ninth Circuit
recognized that e-mails can be traced to tne computer's IP address.
Clements, at 1152 (Expert testimony [that] it is easier to determine
tne origin of a printed email than to trade handwritten or typed
mail); in accord. State v. Pippin. WL 1592442 (Div 3, 2015) (Detective
used IP address to access the host computer...IP address is a unique
address to each computer, that an e-raail address is linked to). This
court should also give deference to weosite providers and presume
that they will not participate in illegal activities.
Therefore, Stephens argues that Respondents cannot survive
Turner's four part test; the Third Party mail •policy, as applied to
the internet is a prior restraint, overbroad and does not serve to
achieve the goal of preventing inmates from prohibited communica
tions. This court snould hold the policy unconstitutional and
overturn the Superior Court's grant of Summary Judgment.
OPENING BRIEF OF
APPELLANT - 20 - 6/02/2015
F. GROUND POUR—SUMMARY JUDGMEHT
THE COURT COMMITTED PLAlrt ERROR GRANTT5G SUMMARY JUDGMENT BY
IGNORING TIE NOiN-MOVIHG PARTY'S EVIDENCE THAT RAISED GEdU15E ISSUESOF MATERIAL FACT—FORECLOSING SUMMARY JUDGMENT. CR 55.
1. CREDIBILITY ISSUE. The non-moving party avoids summary judgment
when it "set[sj forth specific facts which sufficiently rebut the
moving party's contentions and disclose the existence of a genuine
issue of a material fact." And, "Summary judgment will be denied if
tne reviewing court is required to consider an issue of credibililty.
FD1C v. Uribe. Inc.. 287 P.3d o94, 171 Wn.App. 553 (Div 5, 2012).
2. Key Issue. The question to this case is whether inmates circumvent
prohibited correspondance by using websites and internet providers,
e.g. inmate-to-inmate correspondence? In its defense, the DOC
offered the sole declaration of Roy Gonzales. CP 74-79. However,
Gonzales' declaration provides no operative facts in support of his
conclusions or expressed goals; rather, he offers a false narrative
easily reduced to three postulates.
Premise 1: Websites or internet providers (unknowingly) may assist
inmates to violate orohibited contacts;
Premise 2. Gonzales advances the claim that DOC needs to know tne
identify of the parties communicating with an inmate so they can
enforce prohibited contacts; CP 78 and,
Premise 3. Inherent to Gonzales' declaration is the presumption
(without discussion) that tne DOC allocates resources to verify
the return address on envelopes delivered by U.S. Mail; but, tne
same resources are not available to verify website or email
addresses.
OPENING BRIEF OF
APPEALLAdT - 21 - 5/02/2015
Ail tnree premises are false; as a result, Gonzales' Declaration
falls to bald assertion that the Third Party Mail policy is neces
sary to identify the "parties with whom offenders correspond [because
it is] Important to public safetyL,]" and prevents inmates from
circumventing prohibited contacts. CP 78. But, Gonzales relates no
personal experience or operative facts to support ais conclusion. In
rebuttal, Stephens impeached Gonzales' conclusions with hard evidence
tnat the Third Party mail policy is arbitrarily & capricious.
3. Rebuttal Evidence. Premise 1. Stephens argued that Clements v.
Calif. DOC, supra, was dispositive of emails sent to prisoners. In
Clements, the U.S. District court struck down a similar policy,
holding that under Turner, trie prison's restrictions on emails was
unconstitutional. Clements, 1151. The court found that prison
officials produced no evidence to show that internet providers
assisted inmates with coded messages. Id at 1152 ("CDC failed to meet
tne Turner test oecause it did not articulate a rational or logical
connection between its policy ana these interests [public safetyj").
Premise 2. Stephens arovided undisputed evidence that otner American
prisons allow inmates to receive emails from Pen-pal services via
Third Party Mail, e.g. PenAcon.com (Ex 13); write-A-Prisoner.com, (Ex
25 at CP 16). Tne reasonable inference is that other orisons allow
(including BCP) the same aiail rejected in tnis case.
Premise 3. Stephens provided undisputed evidence that DOC does not
muster resources to verify return addresses and makes no effort to
OPENING BRIEF OF
APPELLANT1 - 22 - 5/02/2015
verify an email's IP address. His evidence includes: Alex Peder's
cieclaration tnat email addresses are more traceable than an envelopes
return address (Ex 24, CP 37), cieclaration of Timothy Winger that he
receives pen-pal mail (Ex 15, CP 31); Third party emails from Senator
Pridemore (Ex 9, CP 29); profiles of women looking for work (Ex 18,
CP 13); copy of incoming envelopes with bo?,us name & address that
v;ece not rejected bv DOC's mailroom, (Ex 19 & 20 CP 33); and copy of
email from "Sidney in Largo, EL" that includes her phone number,
email address, ana website contact code (Ex 22, CP 25). These
exhibits, among others, impeach ana discredit as untrue DOC's stated
goals and assertions. Given Stephens' undisputed evidence, the trial
court clearly errec granting summary judgment to the i)OC.
G. GROUND €'/<•, SUPREMACY CLAUSE
THE COM5UNICA1IONS DECENCY ACT OF 1996 (CDA) PROVIDES THAT MOINTERNET PROVIDER SHALL BE TREATED AS THE PUBLISHER OB SPEAKER OF
INFORMATION. 47 U.S.C. § 251).
1. Federal Law. The Respondents' attorney claimed the CDA "is not
applicable to Plaintiff's case because [itJ does not involve tort
liability."' CP 69. However, Respondents' reading of of the CDA is toe
limited. Stephens' CDA claim mirrors that of Backpaae.com. LLC v.
Mcltenna. 851 F.Sup:;.2d 1262 (1996). In Backpage the Plaintiffs argued
that S& 6251, Laws of Washington, violates Section 250 because it
treats online service providers like Backpage.com as "the publisher
or speaker of any information provided by another information content
provider." Id at 1272. Applying the same logic, Stephens
OPENING BRIEF OFAPPELLANT - 23 - 5/02/201!
argues that DOC's Third Party Mail ban of internet speecn violate;,:
Section 230 and thus the Supremacy Clause.
2. Supremacy Clause, provides that federal law "shall be tne Supreme
Law of the Land; and the judges in ^very State snail oe bound there-
oy, any thing in the Constitution or laws of any State to be Contrary
not withstanding. .Backstage, at 1272. Under this principle, Congress
has the power to preempt state law. In this case, Stephens does
succeed on this claim that RCW 72.09.530, vis-a-vis, DOC 450.100
(Tn.ird Party Mail) is preempted because it is expressly preempted and
because it likely conflicts with federal law. The Third Party Mail
policy is inconsistent with Section 230 for three reasons: First,
Section 250 prohibits "treat[ingl'' online service providers" as the
"publisher or speaker of any information provided by another infor
mation content provider." Respondents nave not disputed that Inmate
Scribes and Help From Outside are information content providers and
tiiat Stephens is a "user'' of online information. Second, violation of
the Third Party mail policy, even for lawfully obtained and true
speech is punishable by major or general infractions against the
"user" Stephens. Third, the challenge 'Third Party Mail restriction
stands as an obstacle to accomplishment and execution of the full
purpose and objectives of Coneress. Sec. 230(a), CP 21. For the above
reasons, Stephens asks this court to find NX 450.100, as applied, is
preempted by Section 230 and 18 U.S.C. § 2703, et see. Therefore,
Summary Judgment must be reversed in favor of Stephens.
OPENING bRIBN OF
APPELLANT - 24 - 6/02/2015
H. GROUND SIX— RETALIATION.
FOR MORE THAN FOUR YEARS, THE RESPONDENTS HAVE ENGAGED IN ACTS OFRETALIATION, REJECTING STEPHENS INCOMING INTERNET* MAIL AND DENIEDHELP THE OPPORTUNITY TO WORK IN CORRECTIONAL INDUSTRIES.
1. A retaliation claim may assert an injury no more tangible than a
chilling effect on First Amendment rights. Hines v. GomezT 108 F.3d
265, 269 (CA 9 1997). The necessary elements of a retaliation claims
are: (1) a prison official acting under color of state law; and (2)
intential retaliation for the exercise of a constitutionally pro
tected activity. Stephens alleges that mail rejections began in 2011
on the issue of ''entering into an unauthorized contract". A lawsuit
followed and was subsequently settled. Stephens v. Roy Gonzales, et
al, U.S. District Court, Seattle, No. 13-2-05086-1 (March 4, 2014,
"Stipulation and Order of Dismissal", paying Stephens money). While
litigation continued in Federal Court, DOC began rejecting Stephens
incoming internet mail. CP 76. Stephens alleges that Respondents had
to twist the wording of DOC 450.100 to justify mail rejections; he
further alleges that he was singled out were other inmates received
internet mail. CP 31. In 2012, Stephens was suspended from his job as
a Law Clerk and told he could only work in the unit housing as a
janitor or wheelchair pusher. For more than two years, Stephens has
been denied job opportunities in Correctionsal Industries, even
though, other inmates serving live sentences were give jobs. CP 165
and CP 278. The evidence present adequately supports a claim of
retaliation and constitutes a triable issue. 42. U.S.C. § 1933.
OPENING BRIEF OF
APPELLANT - 25 - 6/02/2015
V. COST BILL
Stephens moves this court for Costs to include: U.S.
postage, photocopy expenses, the filing fee of $290 and
for a statutory attorney fee of $250.
VI. CONCLUSION
Based on the court's file and the arguments presented,
Stephens prays for the court to reverse the Superior
Court Order granting Summary Judgment to the Respondents
and to grant Summary Judgment in favor of Mr. Stphens.
Stephens seeks remand to the Superior Court for trial on
the Federal Civil rights complaint under Section 19H3 and
for the issue or retaliation.
Submitted this j[_ day of July 2015
\L0red Stephens, 743751
tonroe Correction ComplexP.O. Box 888, TRU C-507Monroe, WA 98272
OPENING BRIEF OF
APPELLANT -26- 6/02/2015
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Prosecutorial Misconduct (cont.)
training that all attorneys are presumed tohave received. Sadly, the Court's relianceon such education and training appearsmisplaced.
Indeed, some law schools do not evenrequire criminal procedure as mandatorycoursework. The Tulane University LawSchool in New Orleans, where the Connickcase originated, requires students to takeCriminal Law. However, the ConstitutionalCriminal Procedure course at the school is
an elective.
In no area of the law does an individual
attorney have more effecton other peoples'lives than in the role of prosecutor, and itis therefore essential to ensure that prosecutors receive sufficient training on theirprofessional and ethical obligations. Forthose who claim that prosecutors alreadyreceive education and training in thoseareas, it is apparent from the examples ofmisconduct cited in this article that the
current syllabus is inadequate.Methods to implement such a re
quirement include via bar certifications to
practice as a prosecutor, or through statutory provisions or local court rules.
Greater TransparencyThe practice of keeping attorney dis
ciplinaryproceedings secret is perhaps thegreatest barrier to improving the accuracyand fairness of - and public confidencein - our nation'scriminal justice system.Inno other area of public service is there sucha lack of transparency. This institutionalsecrecy extends to the judiciary, as manycourt rulings that address prosecutorialmisconduct purposefully do not mentionthe name of the prosecutor involved.
United States v. Olsen, for example, inwhich Chief Judge Alex Kozinski voiceda strongly-worded dissent, involved allegations that a federal prosecutor had tailed todisclose that a forensic analystwho handledevidence in the casewasunder investigationfor misconduct which had already resultedin three wrongful convictions.Yet the NinthCircuit s rulingneveridentifiedthe prosecutor - AssistantU.S. Attorney Earl Hicks.
It is perhaps ironic that those whorun for public office are often requiredto disclose detailed information about
their personal life,finances and potential conflicts of
interest, yet when itcomes to prosecu
tors who engage inmisconduct, suchviolations of the
public trust aredeemed too "sensi-
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After all,the transgressions ofcriminaldefendants are public record; why shouldviolations by those who prosecute thembe any less transparent? Disciplinary proceedings need to be open to the public,which in itself would provide a deterrenteffect to prosecutorial misconduct. Manystate bar disciplinary boards also impost-private sanctions that are not publiclyreported, such as private reprimands oradmonishments, which are insignificantpunishments.
Additionally, inorderto promote transparency, agencies that handle complaintsinvolving prosecutors should beindependentand not under the authority of the districtattorney's office or U.S.Attorney'soffice onthe state and federal levels, respectively.
As stated in the 2011 Yak LawJournalOnline article on prosecutorial misconduct:"Thelackof anyexternal oversight ofprosecutors' offices creates an environment in
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November 2014 20 Prison Legal News
